You must be able to persuade the jury that the plaintiff's
negligence, if any, was slight compared with the defendant's. Make
sure the jury understands your client was confronted with an emergency
situation.

The defendant will use a variety of tactics to confuse the issue,
but if you stick to the basic tenets of negligence law and keep the
court and jury focused on them, your chance of success will increase.
Here are 10 defense tactics and strategies for overcoming them.

1. Blame the assailant: the verdict form

In these cases, the defendant will attempt to place the
assailant's name on the verdict form to eliminate or significantly
reduce the percentage of fault attributable to the defendant. In
comparative negligence cases, the apportionment of fault to the
assailant reduces, and may eliminate, recoverable damages. In
jurisdictions that maintain joint and several liability, this tactic
significantly increases the possibility that no negligence will be
attributed to the defendant. The issue is typically raised by pre-trial
motion.

Many jurisdictions recognize that, absent specific statutory
language to the contrary, comparative negligence statutes are not
applicable to intentional torts(1) or other causes of action that are
founded upon a party's non-negligent conduct.(2)

If your state allows comparison of non-negligent with negligent
conduct, either by statute or judicial decision, you still have
compelling arguments against applying those laws in inadequate security
cases.

The inadequate security cause of action is founded on negligence.
Negligence exists if one person owes a duty to another and breaches that
duty.(3) The premises owner is duty bound to take reasonable action to
protect patrons from the unreasonable risk of physical harm. This
includes the duty to protect them from reasonably foreseeable
intentional acts of third parties.(4)

This duty should be the focal point of your attempt to keep the
assailant's name off the verdict form. The practical effect of
including a criminal assailant on the form is to eliminate the premises
owner's duty. Courts that have recognized this impact have refused
to allow the assailant's name on the verdict form.

In Veazey v. Elmmood Plantation Associates, Ltd, the Supreme Court
of Louisiana recognized that the state's comparative fault laws are
broad enough to encompass the comparison of negligent and intentional
torts in an appropriate factual setting.(5) "Fault" is not
defined in the Louisiana statutes. The court held that the trial court
must determine the appropriateness of this comparison case by case.

In Veazey, the court found that public policy considerations
weighed against allowing this comparison. The plaintiff had been raped
by an intruder who entered her second-story apartment through her
bedroom window.

The court found substantial evidence that management had
misrepresented security in the apartment complex and that security had
been substandard. The court cited Kansas State Bank & Trust Co. v.
Specialized Transportation Services, Inc., for the proposition that
"negligent tortfeasors should not be allowed to reduce their fault
by the intentional fault of another that they had a duty to
prevent."(6) Allowing the comparison reduces the landlord's
incentive to protect against the same situation occurring again. The
Louisiana Supreme Court found this result clearly contrary to public
policy.

The New Mexico Court of Appeals applied the same reasoning in
holding an employer vicariously liable for the intentional wrongful acts
of its off-duty employee.(7) The court refused to allow comparison of
the employer's conduct with the off-duty employee's
intentional acts.

The legislative history of a state's comparative negligence
statute may be helpful in keeping intentional tortfeasors' names
off a verdict form. In 1994, Wyoming amended its comparative negligence
statute to expand the definition of fault.(8) The legislative history
indicated that the 1994 amendment, as originally drafted, defined fault
as follows:

"Fault" includes acts or omissions, alleged to be

a legal cause of death or injury to person or

property that are in any measure negligent,

reckless, wanton, culpable, or intentional, or

that subject an actor to strict tort or strict product

liability, and include breach of warranty,

assumption of risk and misuse or alteration of a

product.(9)

However, the amendment as enacted did not include
"intentional" language in the definition of fault. The clear
inference to be drawn from this deletion is that the legislature did not
intend to include intentional conduct in the definition of comparative
fault. This legislative history, combined with prior case law
prohibiting comparison of negligent conduct with wrongful conduct predicated upon strict liability and breach of warranty theories,
recently assisted a Wyoming trial court in deciding that a criminal
assailant should not be included on the verdict form.(10)

2. Blame the assailant: no proximate cause

Proximate cause is likely to become a battleground in these cases.
Typically, the proximate cause issue will be raised by a defense motion
for summary judgment. In defining the term, the majority of courts have
adopted the "substantial factor" test. Under this test, the
defendant's conduct is a proximate cause of the event if the
conduct was a substantial factor in bringing about the event and the
injury. The substantial factor question should be answered by the
jury."

To avoid summary judgment, it is essential that the issue of
proximate cause be discussed in terms of foreseeability. Whether
circumstances exist from which an owner should reasonably foresee that
customers are at risk and that appropriate security measures should be
taken is a fact question to be answered based on "the totality of
the circumstances."(12)

3. Assert intervening or superseding cause

The defense lawyer may claim that the assailant's actions
were an intervening or superseding cause of the plaintiff's
injuries. This defense is best analyzed in the context of the premises
owner's duty to take reasonable precautions to protect its patrons
from the reasonably foreseeable intentional acts of third parties.
Application of the intervening cause defense without reference to this
duty effectively eliminates the premises owner's obligation to
protect its patrons from criminal attacks.

An intervening cause is one that arises after a defendant's
negligent act and is not foreseeable.(13) Foreseeable intervening forces
are within the scope of the original risk and, thus, within the scope of
the defendant's negligence. Courts generally agree that intervening
causes that fall fairly within this category will not supersede the
defendant's responsibility.(14)

4. Blame the plaintiff

The plaintiff's comparative negligence is asserted in nearly
every negligence case. If defense counsel can find ways to attribute
negligence to the automobile passenger injured in a rear-end collision,
you can be sure that your plaintiff will be a prime target in the
inadequate security case.

* "You knew that dark parking lots were dangerous, didn't
you?"

* "You knew that it was dangerous to walk at night in an
unfamiliar area, didn't you?"

* "You could have run away, couldn't you?"

You must convince the jury that your client acted reasonably given
the circumstances. At a minimum, you must be able to persuade the jury
that the plaintiff's negligence, if any, was slight compared with
the defendant's. Make sure the jury understands your client was
confronted with an emergency situation.

The defendant, on the other hand, had years to anticipate
potential dangers, implement plans to eliminate or lessen those dangers,
and hire and properly train employees to deal with those dangers. Use
the plaintiff's testimony to emphasize the defendant's
superior knowledge of the risks and the reasonableness of the
plaintiff's behavior.

* "I'm a visitor to this city and this area."

* "I'm staying at a hotel recommended by AAA."

* "No one at the hotel warned me that this was a high crime
area."

* "I was walking through the parking lot of the hotel where I
was staying--where else should I have parked?"

* "I thought if I screamed loud enough someone from the hotel
would come--I didn't want to run farther away from the
`safety' of the hotel."

5. Focus on the few minutes of the attack

Defense counsel will attempt to narrow the focus of the case to
the brief interval of the attack. If the defense is successful, the
plaintiff's chances of success diminish significantly. Most
criminal attacks occur in a brief span of time, and during the attack
there may not be enough time for the premises owner to prevent injury.
The owner should have acted before the attack.

Defense counsel may ask the plaintiff or witnesses to close their
eyes, envision the attack, and say "stop"when it is over.
Counsel will time this "reenactment," which typically lasts
only a few seconds. You must shift the focus to actions that the
defendant should have taken before the. incident that would have
prevented the attack. These include training employees adequately,
anticipating potential danger to customers, and alerting patrons to the
crime rate in the vicinity.

Aetna Insurance Co. reportedly gives its insured business owners a
premises security handbook to improve their security and prevent violent
crime. The book suggests the following as reasonable precautions a
premises owner should take:

* Assess the operation's susceptibility to crime.

* Educate employees and tenants.

* Carefully select and then supervise employees.

* Update written security plans.

* Restrict access to the property.

* Increase security at night.

* Use effective security cameras and alarm systems.

* Control key access and usage.

* Pay special attention to holidays and special events.

* Do not exaggerate the level of security --customers or tenants
may expect complete protection without exception.

* Set an appropriate budget for security needs.(15)

Your security expert should be able to provide a list of
reasonable security precautions that the defendant should have taken.
Remember, do not fall into the trap of limiting the focus of the case to
the few seconds of the attack.

6. Use distinguishable case law

Inadequate security case law is factually intensive. Many cases
that appear devastating on the surface may be factually distinguishable.
For example, the standard of what constitutes notice of a dangerous
condition may be different for a family restaurant owner than a tavern owner.

The Wyoming Supreme Court, in Hanna v. Cloud 9, Inc., recently
affirmed summary judgment in favor of a defendant bar owner who was sued
by a patron injured during a fight at the bar. (16) The court reiterated
the premises liability rule set forth in White v. HA, Inc, that a tavern
owner owes a duty to protect all customers from third-party assaults
where (1) the tavern keeper knew or should have known about a
disturbance, (2) enough time elapsed between the disturbance and the
assault for the tavern keeper to take appropriate action, and (3) there
was a connection between the disturbance and the assault.(17) The court
went on to note that the attracting disturbance must be "action,
threat of action, or some type of demonstration."(18)

The Hanna case was decided while a restaurant inadequate security
case was pending at the trial level. The plaintiff in that case had been
injured during an attack by a drunk off-duty employee of a local family
restaurant that did not serve alcohol. Predictably, defense counsel
immediately filed a motion for summary judgment based on Hanna.

The trial court orally denied the motion, reasoning that the
"disturbance" definition relating to taverns did not apply to
family restaurants that do not serve alcohol.(19) When the defense
raises case law that seems to support its position, you should point out
distinguishing facts and reasoning.

7. Claim the security expert is a hired gun

Security experts can provide important insight and direction
regarding fact gathering and case focus, and they should be involved as
early as possible. Your expert may be the most important weapon in
defending against an early motion for summary judgment or to dismiss.
You must be careful, however, about the expert you call as a witness at
trial. Your investigation expert may not be the best choice as a trial
expert.

The more your expert has testified previously, especially if tied
to plaintiffs only, the more likely the jury will believe the
defense's portrayal of the expert as a hired gun. Your expert
should be an expert regarding security related to the defendant's
business--if the defendant is a hotel, hire an expert in hotel security.
Consider the possibility of using two experts--one national and one
local. The national expert will discuss whet the defendant should have
been doing. The local expert will testify that he or she agrees --in
fact, that's how "they" do it at his or her place.

8. Argue no warning

The defendant may claim that this incident is the first of its
kind, and, therefore, the defendant should not be held responsible; that
is, every dog deserves one bite. The defendant is really raising the
"prior similar incidents rule," which has been used by courts
to evaluate foreseeability. In the past, this rule provided a
significant hurdle for plaintiffs because it held that a criminal act is
foreseeable only if a similar act occurred at or near the same area.(20)

Courts should reject this approach for a compelling reason:
"Under the prior similar incidents rule the first victim is never
compensated, regardless of the actual foreseeability of the
act."(21) The proper approach is to recognize that the lack of
prior acts is only one factor in determining negligence. Negligence
should be based on an evaluation of the defendant's conduct in
light of the "totality of the circumstances."(22)

The issue at this level may not be what the defendant knew but
rather what the defendant should have known. Your expert can help you
with what the defendant should have known. Trade publications and the
defendant's policy manuals may show that the defendant knew more
than it admitted. For example, policy manuals may prove the defendant
knew it had a duty to anticipate and plan for possible dangers.

In a recent Wyoming restaurant case, the plaintiff was injured by
a drunk in a violent attack on the premises.(23) The defendant argued
that an attack like this had never occurred before in the restaurant.

The defendant's policy manuals--which contained emergency
procedure checklists, robbery procedures, earthquake procedures, and
other training procedures--reflected the defendant's knowledge of
its duty to anticipate situations that were potentially dangerous and to
adequately train its employees to deal with those situations.

The defendant also contended that, to its knowledge, drunks were
not dangerous. National publications, government studies, and industry
publications all provided strong evidence of the correlation between
alcohol and violent criminal acts. The denial of any causal link in
light of that overwhelming evidence presented a compelling picture of a
defendant who had failed to reasonably anticipate dangers and adequately
train employees to deal with them.

9. Misstate the standard of care

Defense counsel will claim that the defendant is not a guarantor or insurer of the safety of all people on its premises. This tactic is
an attempt to misstate the standard of care, confuse the jury, and
improperly imply that the plaintiff is claiming the defendant should
ensure the safety of all patrons.

Counsel will attempt to use this argument throughout trial. If
possible, you should not permit this. Consider filing a motion in limine to deal with the issue before trial.

The plaintiff is not claiming that the defendant should ensure the
safety of everyone on the premises, merely that the defendant should
provide a reasonably safe premises.

10. Seek victory early

Defense counsel will act quickly to achieve a knockout punch.
Motions for summary judgment or judgment on the pleadings are likely to
be filed early in the case. You may not have time to resist those
motions if you do not prepare early.

Involve your expert immediately, preferably before filing suit.
The expert can assist you in obtaining the information necessary to
create factual issues that will allow you to survive the summary
judgment motion.

Obtain crime statistics. Find out what normal police response time
is to the premises. Discover what information the defendant had about
the assailant's criminal records. Ascertain applicable industry
standards. Initiate discovery immediately. File discovery requests
regarding the defendant's policy manuals, training records,
employment applications, and so forth. Take depositions of key
personnel. Obtain affidavits of necessary witnesses to rebut the
anticipated motion. In the inadequate security case, it's not a
question of whether a summary judgment motion will be filed, it's a
question of when.

Defendants in these cases have an arsenal of weapons for shifting
the blame. By anticipating defense tactics and preparing adequate
responses, you can best ensure a favorable outcome.